Citation Nr: 1226335
Decision Date: 07/31/12 Archive Date: 08/03/12
DOCKET NO. 08-38 921 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for residuals of a right ankle injury.
2. Entitlement to service connection for residuals of a left great toe injury.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K.S. Hughes, Counsel
INTRODUCTION
The Veteran had Army National Guard service from April 1967 to August 1967.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in June 2008. A statement of the case (SOC) was issued in November 2008. The Veteran perfected his appeal in December 2008.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran's main contention is that he developed disabilities of the right ankle and left great toe as a result of injuries sustained during service. He has submitted private medical records in support of his claims.
The service treatment records (STRs) show that, in July 1967, the Veteran was treated for a right ankle sprain after falling from a horizontal bar and, after removal of the gel cast, he dropped a tripod on his left foot and injured the left great toe. He has submitted private medical records showing current right ankle and left great toe treatment. Statements from the Veteran and his family collectively report that he has experienced right ankle and left great toe impairment since his inservice injuries. He has not yet been provided a VA examination which includes a medical opinion and a review of the claims folder. Under the circumstances, the Board believes further development to include an appropriate examination and opinion is necessary to fully assist the Veteran.
Lastly, the Veteran submitted additional private treatment records to the Board in April 2009, after the November 2008 SOC was issued. He has not waived initial RO review of this newly submitted evidence. Thus, while on remand, the new evidence should be reviewed by the RO prior to the issuance of a supplemental SOC (SSOC). 38 C.F.R. § 20.1304(c) (2011); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
Accordingly, the case is REMANDED for the following action:
1. The RO should request that the Veteran identify any relevant post-service VA and/or private medical treatment (including the names, locations, and approximate dates). With any necessary authorization from the Veteran the RO should take appropriate action to obtain and associate with the claims file all such medical records.
2. After completion of the above to the extent possible, the RO should schedule the Veteran for a VA examination of his right ankle and left great toe. The claims file must be made available to the examiner for review and any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran (including eliciting a detailed history), the examiner should clearly report any right ankle and/or left great toe disability(ies) diagnosed on examination. In this regard, the examiner should expressly comment on the finding of "old trauma" noted on the September 2002 X-ray study and the Veteran's assertion of right ankle and left great toe impairment since service separation.
As to any diagnosed right ankle and/or left great toe disability, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that such diagnosed disability is causally related to the July 1967 right ankle and left great toe injuries. Detailed reasons for the opinions should be given with discussion, as appropriate, of any subsequent injuries.
3. After completion of the above and any other development which the RO may deem necessary, the RO should review the claims file (including the private treatment records the Veteran submitted after the November 2008 SOC) and readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate SSOC and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).